The Outer Space Treaty at Fifty-Three
The Outer Space Treaty (OST), frequently described as the ‘constitution’ or cornerstone of space law, entered into force 53 years ago this week on 10 October 1967. The OST has now been ratified by 110 States and signed by a further 23. It is the most widely accepted of the five major space treaties (although the Rescue Agreement and Liability Convention don’t fall far short.) The full text of the treaty can be accessed on the UN website here.
Arguably the most important aspects of the treaty are found in the first two articles which establish freedom of access and use of space, and prohibit national appropriation of outer space, the moon and other celestial bodies. These establish space as a global commons, analogous (although not exactly) to the oceans and Antarctica. Space is res communis not res nullius.
The Outer Space Treaty was meant to be a ‘framework agreement’ that would be fleshed out by subsequent treaties, like the Rescue Agreement and Liability Convention mentioned above. Furthermore, then President Johnson viewed the Outer Space Treaty primarily as an arms control treaty and considered it the most important development since the Limited Test Ban Treaty of 1963. It was Johnson’s hope that the Outer Space Treaty would help defuse the space race. This Cold War context is important for understanding the background of the treaty.
Today the treaty provides the bedrock upon which the space governance regime sits. The treaty continues to work well, and is widely accepted, with many of its provisions (most notably Articles I and II) generally regarded as having attained the status of customary international law (broadly meaning that all states, even those not party to the treaty are subject to those provisions.) However, the world, and human activities in outer space are now changing. I wrote a post on the 50th anniversary of the Outer Space Treaty in 2017 and it is interesting to see how the world has changed since then. We’ve now seen an (attempted) private-sector lunar landing, the announcement of the US’ Artemis Accords, development of ‘on-orbit servicing’, and yet more testing of anti-satellite weapons, including a destructive test by India. Much of this is exciting but there are causes for concern, particularly set against a background of increasing ‘complications’ in the international arena if not outright ‘great power competition’.
So, what is the future for the Outer Space Treaty? It is a framework treaty that provides strong principles, which enable flexible development. We are seeing this with space resources. However, without engagement in the multilateral governance process these principles won’t amount to much. Granted, there’s plenty to be gloomy about, the state of international society isn’t brilliant, but in space we can see some rays of hope. That the Trump administration is at least paying lip service to the Outer Space Treaty (and I personally give them more credit than that) is encouraging. This is the most unilateral administration we’ve seen in a while, so if even they are committed to the Outer Space Treaty then that is a good sign (but we shouldn’t take it for granted). Space resources are now a regular topic at UNCOPUOS, space debris is increasingly being recognized as the hazard it is, and there are even movements on developing norms for military activity in outer space.
There are plenty of problems facing the space governance regime, but the Outer Space Treaty isn’t one of them. It has provided a good framework for the regime that has developed and looks set to continue to do so. There’s work to be done but we don’t need to replace the foundation. So happy birthday to the OST.
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United Nations, Status of International Agreements relating to activities in outer space as at 1 January 2020, https://www.unoosa.org/documents/pdf/spacelaw/treatystatus/TreatiesStatus-2020E.pdf Whatever a recent US Executive Order may say… not that it matters too much, ‘commons’ is a descriptive term that does not, by itself, connote any legal status (it has that status because of Art I and II OST regardless of whether we call it a commons or not). Robert Dallek, ‘Johnson, Project Apollo and the Politics of Space Program Planning’ 68-91 in Roger D. Launius and Howard E. McCurdy eds., Spaceflight and the Myth of Presidential Leadership (University of Illinois Press, 1997), 81 https://thomascheneyblog.wordpress.com/2017/01/27/the-outer-space-treaty-at-fifty/ Loren Grush ‘Israel’s Attempted Moon Landing Fails Moments Before Touchdown’ The Verge (11 April 2019) https://www.theverge.com/2019/4/11/18306294/spaceil-beresheet-lunar-lander-failure-crash-engine-shut-down https://www.spacefaringcivilization.space/post/the-artemis-accords Brian Weeden and Victoria Samson (eds), Global Counterspace Capabilities: An Open Source Assessment (Secure World Foundation 2020) - https://swfound.org/media/206970/swf_counterspace2020_electronic_final.pdf https://www.un.org/press/en/2019/gadis3638.doc.htm; https://www.gov.uk/government/news/uk-push-for-landmark-un-resolution-to-agree-responsible-behaviour-in-space